24 October 2016

The Interactive Constitution

Readers of this blog will know or soon come to know that one of my favorite websites is the one published by the National Constitution Center. Not only is the site a wealth of information run by an important and worthwhile organization, it also provides people interested in the U.S. Constitution with tools to help them understand the history and meaning of the text. For at least a portion of my students this semester, getting a grip on the meaning of this text will be critical to performing sufficiently in class. As a study aid for my U.S. Constitutional Law courses students can do no better than download the Interactive Constitution app from the National Constitutional Center's website. Many of my lecture slides now link to content found in the interactive constitution. Having it handy on your "Handy" will make understanding what we discuss in class a whole lot easier.

15 June 2016

Race and Jury Selection

Students are often surprised when I tell them how juries are selected in the United States. Once they fully grasp the idea of peremptory challenges, the inevitable question is can these challenges be used to exclude someone because of race. The answer, according to the United States Supreme Court in Batson v. Kentucky is absolutely not, but proving racial discrimination during jury selection is another matter. Despite what looked like a recent Supreme Court decision affirming Batson, my former employer the American Civil Liberties Union recently posted to their blog an article explaining how race still plays a significant role in jury selection despite these Supreme Court rulings. It is well worth a read.

13 June 2016

Supreme Meals

The Washington Post recently posted an article about how the Justices of the United States Court get along with one another despite some very stark disagreements over the law. The secret appears to be good wine, elaborate meals and no talk about work.

09 June 2016

Minority Judges in England

My favorite UK legal blog "Legal Cheek" recently reported something we talked about in my course "Introduction to Common Law Legal System," namely the dearth of minority judges in England.
Stats from the Judicial Appointments Commission show that, of the lawyers who applied to be recorders (low-level judges) last year, only 10% of BME candidates were ever shortlisted. This is compared to 20% of white candidates. Of those who made the shortlist, 29% of BME lawyers were recommended for appointment. This is 17 percentage points less than the corresponding figure for white lawyers (46%).
It should also be noted that, since 2012, not a single BME candidate has applied to or been appointed to the Court of Appeal.
One reason cited for the changes made by the 2005 judicial selection reforms was the desire to diversify the bench in England. While the bench most surely has become more diverse, it appears that there is still a lot of work to do.

08 June 2016

Towards a Minimalist Court?

As students in my courses this semester know, the United States Supreme Court is operating with one less Justice than their normal number of nine due to the recent death of Justice Antonin Scalia and the Senate's refusal to give President Obama's nominee for the vacancy a vote. While many of the President's supporters have criticized this development, one former Obama Administration official is actually celebrating the decisions this short-handed Court has made over the past few months. Law Professor Cass Sunstein argues that the recent decisions by the Court have shown a great deal of judicial restraint, which he argues is good for two reasons:
The first is that decisions should be narrow rather than wide. If the court is asked to strike down an affirmative-action program, it should focus on that program, not on affirmative action in general. This holds as well for abortion, national-security surveillance and presidential powers: Decide the case at hand and leave other problems for other occasions.
The second idea is that decisions should be shallow rather than deep. In a free-speech case, for example, minimalists believe that the court should avoid the most controversial claims about the foundations of liberty. Instead it should seek rulings that can command support from people who have different views on the deepest questions. The justices might agree that the government may not regulate speech unless it poses a clear and present danger, but that view could be rooted in distrust of public officials, respect for human dignity or belief in the marketplace of ideas—and there is no need for them to pick a preferred theoretical foundation.
The idea of judicial restraint is one that German students should probably understand, as the German Constitutional Court is sometimes also criticized for failing to exercise so-called " richterliche Selbstbeschränkung." A 2014 SZ article provides some recent examples.

05 June 2016

Arkansas Considering Ending Judicial Elections

The Arkansas Democrat-Gazette is reporting that "in the aftermath of state Supreme Court races rife with negative advertising funded by out-of-state groups, a special legal task force is recommending that Arkansas end elections for its top court." The idea behind electing judges is to make them accountable to the people, but as more and more special interest groups spend money on these campaigns, questions are being raised as to whether judges are truly accountable to the people when their election is so heavily dependent on money from special interest groups.

30 May 2016

Only a Third Find Pupilage

Students in my Introduction to Common Law class know that a step in becoming a barrister is securing a pupilage, the practical training step at the end of the long road to becoming a barrister. In class I have stressed how difficult it is to secure such practical training, and a recent study has shown just how difficult it really is. The English law website Legal Cheek notes:
The statistics, published today by the Bar Standards Board (BSB), show that 35% of all UK/EU domiciled grads that started the Bar Professional Training Course (BPTC) in the academic years commencing in 2011-2013 have gone on to gain pupillage.
The article goes on to discuss how diverse the Bar is becoming:
On the diversity front, the report shows that the number of women progressing to a career at the bar is similar to men; 47% of pupillages were awarded to women. It must be borne in mind that more women are enrolling on the BPTC in the first place, which may suggest that men have a greater chance of success. It’s also speculated that white aspiring barristers are more successful in finding pupillages than black ethnic minority (BME) candidates, but “more research is needed to determine whether and, if so, why this may be the case”.

24 May 2016

Debate Over Term Limits for Justices Heats Up

As many students in my courses have learned, federal judges in the United States serve for life. And with no mandatory retirement age, life can mean life. In England, on the other hand, a life term means until one reaches the mandatory retirement age of 70. Nevertheless, neither system has any kind of term limits in place for their judges. As a side note here, it should be pointed out that of course many of the states in the United States do have a mandatory retirement age and a mechanism for voters to remove judges.

The recent death of Justice Antonin Scalia was reignited a debate over whether federal judges should also serve only for a fixed period of time. A recent piece by Orin Kerr in the Washington Post explains why life terms might be a problem:
It’s often said that elections have consequences. But thanks to life tenure, elections don’t have nearly as much consequence as they should have on the Supreme Court. A President might have zero vacancies to fill or may have many. For example, during the four-year Presidency of Jimmy Carter, no Justice retired. Carter never made a Supreme Court nomination. On the other hand, in the four-year window from 1937 to 1941, seven Justices died or elected to step down. President Franklin Delano Roosevelt and the Senate of that era quickly filled all seven spots.
In his next paragraph, though, Kerr gets to the heart of the matter: the ideological make-up of the Court:
If we all agree that the ideological orientation of the Supreme Court matters — which, for better or worse, undeniably has been in case in our collective memory — then I can’t see why that orientation should depend on how long a handful of people in their 70s and 80s can continue to serve. It would make much more sense to tie that orientation to the elected branches in some predictable and democratically accountable way.
For many German jurists and students of law, this might seem out of place. Aren't courts suppose to be objective? Isn't a judge suppose to leave ideology out of the decision and simply apply the law? To understand the debates over Supreme Court appointments in the United States one must also understand that this idealistic view of judges is something of the past. Today, the make-up of the Court is as politically charged as any other controversial topic.

For additional views on this topic see here, here, and here.

20 May 2016

Changing the size of courts

The number of judges that sit on America's highest courts (federal and state supreme courts) is, for the most part, not set by the federal and state constitutions. Congress and state legislatures are free to change the number of Justices sitting on the highest courts as they see fit. For instance, the first U.S. Supreme Court had only six members. The number was gradually expanded to seven, then nine, then ten, then back to seven and finally left at nine. All via Acts of Congress. The same goes for the various state Supreme Court.

However, the magazine Governing recently reported on a disturbing trend:
When supreme courts were expanded in the past, it was typically the result of a larger revision of the state constitution, said Bill Raftery, an analyst with the National Center for State Courts. Over the past decade, however, legislators in several states have sought to expand or reduce the size of their supreme courts -- in some cases admitting their intent to sway the ideological balance. "In several of these instances, the legislators have been very clear that they want certain decisions by their state courts of last resorts to be changed, or they want future decisions decided a different way," said Raftery.
Today America's courts are as political as the other three branches, with control of the highest court being a major goal of both the established political parties.

19 May 2016

State Courts

Students in some of my courses learn that each state in the United States has its own separate and distinct court system, and these systems are by no means identical. It is up to each state to shape their system as they see fit, with changes being made regularly. One such change just took place in the State of Georgia where the legislature recently passed law adding two more Justices to the Georgia Supreme Court. Of course, expanding the make-up of court can sometimes lead to claims of "court packing" whereby the party in power adds seats in order to control the judicial branch. As the Atlanta Journal Constitution points out, this very claim is being made by some Democrats in Georgia.